Rights to Light by Royal Appointment?

Section 293 of the Town and country Planning Act 1990 defines Crown Land as land in which there is a Crown or a Duchy Interest. This is an interest belonging to a government department or held in trust for the Crown for the purposes of a government department and any interest the secretary of state specifies. This includes a collection of lands and buildings which are occupied and serve any department, office or executive agency of the Crown.

The Town and Country Planning Act 2016 applies to the Crown estate in the same manner as any other development meaning that the Crown would be required to apply to the local authority for planning permission if they want to develop.

However, the Crown estate benefits from additional permitted development rights which apply without a need for express planning permission in order to allow any critical developments to take place and in the interest of national security and defence. Examples of these include Job Centre Plus centres, courts and tribunals and up until the 1st April 2012 Post Office buildings were also part of the Crown Estate under the Royal Mail Group.

A Right to Light is an easement that gives a landowner the right to receive light through defined apertures over neighbouring land. The owner must have enjoyed light through the defined apertures for at least 20 years in order to benefit from the Right to Light via the Prescription Act 1832.

The amount of light someone is entitled to has evolved through caselaw with the leading legal authority being Colls v Home and Colonial Stores Ltd [1904] UKHL 1. In this Judgement Lord Davey ruled that the dominant owner is entitled to “ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling-house, or for the beneficial use and occupation of the house if it is a warehouse, a shop, or other place of business.”.

More recently Lord Justice Goff in Allen v Greenwood [1979] 2 WLR 187, summarised what the dominant owner’s entitlement would be. This was summarised as “the light required for the beneficial use of the building for any ordinary purpose for which it is adapted”.

The Waldram method of calculating “sufficient lighting” has been widely accepted in rights to light cases to be that a room should receive 0.2% of the sky over 50-55% of the room. If less than 50-55% of the room is sufficiently lit, this falls under the “grumble line” in which actionable injury can be enforced. Over time, the method of calculating sufficient light has evolved greatly through technological advances and expertise on the subject matter. This involves plotting the area of a room which receives adequate light before the proposed infringement and comparing it with the area that will be sufficiently lit after the construction of the proposed development.

This is a valuable right as light is important in increasing the utility, value and amenity of a room or property. If a neighbour suspects that a development may affect their Rights to Light, they have a right to seek relief through the courts which could lead to an injunction to either stop building or remove the offending parts of the development. In many cases damages are be awarded for an actionable injury, or negotiated separately, although this is dependent on the facts of the case.

However, Rights to Light do not apply to the Crown Estates as demonstrated by Perry V Eames [1891] due to the fact that the Prescription Act cannot be asserted against the Crown. As a result, a neighbour to a Crown Estate will not have any Rights to Light over the land, regardless of the length of time they have had ownership of the property, unless this was an express agreement between the two parties.

Properties that are neighbours to a Crown building will gain a Right to Light 20 years from the point the Crown property is sold to another party, and the new owner is registered at the Land Registry.

Increasingly, there have been redevelopments of Crown property. Whilst this may be problematic for properties neighbouring a Crown Estate especially if there is increased massing, this can be great enabler for developers. Due to this exemption, developers will be able to redevelop previously used Crown land without the worry of infringing on Rights to Light. Nonetheless achieving adequate daylight is still very important across developments and so will still be a consideration at planning application stage.

The BRE Report 209 Site Layout Planning for Daylight & Sunlight has been designed to provide guidance to developers to help them maintain adequate lighting in neighbouring properties and achieve it within proposed developments. As a result, light levels in neighbouring properties are still safeguarded in the absence of a Right to Light.

The BRE guidance acts as a way of ensuring proposals are protecting the light of existing neighbouring properties as well as ensuring the adequacy of light for occupiers within new developments.

So, whilst an injunction or damages may not be a pressing issue when converting a Crown building to a residential property, achieving the BRE recommendations would need to be taken very seriously to ensure adequate lighting is preserved in neighbouring properties and planning permission is achieved.

Rapleys Neighbourly Matters team advices on Rights to Light, Daylight & Sunlight, Party Walls and Access Arrangements, representing developers and neighbours to development across the UK.